Case 010310. Request by an employee of a local authority for job references provided by members of staff of a public body - referees understood references given in confidence - whether release would have a significant, adverse effect on the performance of functions relating to management - section 21(1)(b) - whether information provided in confidence -section 26(1)(a).

Case Summary

Facts

The requester sought access to references relating to him which his employing local authority had sought in the course of a promotion competition. The references were provided by members of staff of a public body. The Council had approached the referees on the basis that the references would remain confidential. The Council refused access to the references on the grounds that section 21(1)(b) applied, in that their release would have a significant, adverse impact on the performance of the Council's functions relating to management, "specifically, its ability to properly assess candidates for posts". It also refused access to the records on the basis that they contained information provided to it in confidence.

Decision

The Commissioner did not accept that a public body should seek to protect an approach to the performance of a particular function where that approach would appear to breach the requirement to abide by fair procedure. She took the view that the functions intended to be protected by section 21(1)(b) are functions being exercised in a proper manner and found that section 21(1)(b) did not apply to the references. She also said that, should she have found section 21(1)(b) to apply to the references, she considered that the public interest would have warranted their release.

She noted that the referees had given the references in the course of the performance of their duties as staff members of a public body. She said that, because the references had been provided at a time when the FOI Act had applied to local authorities for more than two years, the Council should have known that the FOI Act does not protect confidential communications between a public body and a member of staff of a public body, where that staff member is acting in the course of the performance of his or her functions.

She also said that public bodies, seeking employment references, should make referees aware that their references are subject to release under the FOI Act.

Date of Decision: 16.09.2004

Our Reference: 010310

16.09.2004

Mr X

Dear Mr X,

I refer to your application to this Office under the Freedom of Information ("FOI") Act, 1997 for a review of the decision of [name of local authority], "the Council", on your FOI request for access to certain records. Please accept my apologies for the long delay which has arisen in dealing with your review application. This delay has arisen because of the large volume of applications received in this Office.

Background

In your FOI request of 29 May 2001 you sought:

"... the document(s) from my Employer, [name of local authority], as read by the Town Clerk Mr. W on the 07/02/2001 in presence of Mr. Y Borough Engineer, and Ms. Z Personnel Manager.

Secondly I am seeking a copy of the document(s) that was canvassed for and sought by and sourced by my employer, from person or persons unknown, in relation to me Mr X.

The sourced document(s) I am referring to here is/are document(s) that were referred to in the Town Clerk's statement of the 07/02/2001, relative to and concerning a [name of position to which he had applied for promotion]."

The Council's decision of 28 June 2001, upheld at internal review on 20 July 2001, was to refuse the first part of your request on the basis that the record no longer existed; the second part of your request was refused in reliance on section 21(1) of the FOI Act "for the reason that the disclosure of the information concerned could reasonably be expected to have significant adverse effect on the performance of the functions of [name of local authority], particularly relating to the management of staff." You applied to this Office for a review of that decision by letter dated 25 July 2001.

In the course of this review, the Council expanded on the grounds for its refusal of the records and, in particular, argued that the records covered by the second part of your request are exempt by reference to section 26 (which protects information obtained in confidence) as well as by reference to section 21(1).

I have carried out this review in accordance with the provisions of the FOI Act, 1997 as amended by the Freedom of Information (Amendment) Act, 2003. In the course of this review I have had regard to the following:

• to your own submissions to, and contacts with, this Office;
• to the initial conclusions of the Council on the matter;
• to the Council's responses to a number of queries raised by this Office;
• to the submissions of the authors of the documents identified in the second part of your request;
• and to the provisions of the FOI Acts generally.

Scope of Review

The issue in this review is whether the Council was correct in refusing your request in accordance with the provisions of the FOI Acts, including whether the Council has taken all reasonable steps to locate all records relevant to your request.

Findings

Part 1 of Request

Section 10(1)(a): records which do not exist or cannot be found

The Council's position, as outlined in correspondence with yourself and with this Office, is that the record sought in the first part of your request, being the document read by the Town Clerk on 7 February 2001, no longer exists. Technically, this amounts to a refusal of this record on the basis of section 10(1)(a) of the FOI Act. This provides that a head may refuse a request where "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken".

The issue which must be addressed in this part of the review is whether the Council's decision to refuse access to the record, on the basis of section 10(1)(a) of the FOI Act, is justified.

I wish to clarify the role of my Office in cases such as this, that is, where a public body has decided that the record requested cannot be found or does not exist. Some requesters may expect my Office to carry out a search for the record or records in question. However, I consider that my role in these cases is one of reviewing the decision of the public body and deciding whether that decision, to refuse access on the grounds that the record requested does not exist or cannot be found, was justified. This means that, as in any other review, I must have regard to the evidence available to the decision maker and the reasoning used by him or her in arriving at the decision. My role as Information Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and, if so, whether he or she was justified in coming to his/her decision in the case. The evidence in such cases consists of the steps actually taken to search for the records along with miscellaneous other evidence about the record management practices of the public body which formed the basis on which the decision maker concluded that the steps taken to search for the records were reasonable. The Council is aware that, where appropriate, it is open to my Office to visit the Council's offices to establish the nature and extent of the searches carried out and/or to examine its record management practices.

It should be noted that the approach outlined above was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.) where he said as follows:

"I am satisfied also that the respondent's understanding of his role, as outlined in evidence, was correct in that he was not required to search for records but was required rather to review the decision of the Department and in doing so to have regard to the evidence which was available to the decision-maker and to the reasoning used by the decision-maker in arriving or failing to arrive at a decision."

My staff put a number of specific queries to the Council about its record management practices and its search procedures in this case.

According to the Council, the specific record sought in the first part of your request formed part of a working notebook used by the then Town Clerk. As the Town Clerk had told the Council that this notebook had been destroyed - once used up - the Council took the view that detailed searches for the notebook were not necessary. As it is entirely plausible that the Town Clerk, or any official acting in similar circumstances, would work from notes or a work notebook in the circumstances you outline, and as it is equally plausible that such working notes would not necessarily be preserved, I can accept the overall plausibility of the Council's position that these notes, or the work notebook, no longer exist. According to the Council, the then Town Clerk has re-stated on several occasions that the work notebook in question has been destroyed.

I accept that the Council was not required to undertake detailed searches in circumstances where (1) what is at issue is a very specific record (a work notebook) and (2) where that record does not constitute a formal record of the Council which one would expect should be preserved and (3) where the holder of the record has specifically stated that the record no longer exists.

On the basis of enquiries made by this Office, as summarised above, I am now satisfied that the Council has taken all the steps it could reasonably have taken to ascertain whether the record, covered by the first part of your request, still exists. In these circumstances, I find that the Council is justified in its reliance upon section 10(1)(a) to refuse this part of your request.

Part 2 of Request

Preliminary

In the interests of clarity, it is necessary to identify the records covered by the second part of your request as references taken up by the Council in the course of its dealing with your application for the [name of position to which he had applied for promotion]. Before dealing with the exemptions claimed, I wish to make the point that, while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. I have also to refrain from disclosing information which a public body contends is contained in an exempt record so as to preserve that party's right of further appeal to the High Court. These constraints mean that, in the present case, the extent of the reasons that I can give is somewhat limited.

A further preliminary point arises from the application of section 34(12)(b) of the a FOI Act. This provides that "a decision to refuse to grant a request ... shall be presumed not to have been justified unless the head shows to the satisfaction of the Commissioner that the decision was justified." The effect of this is that the onus of justifying the refusal of records rests with the Council in this case. The presumption in the FOI Act is that records sought will be released and it is a matter for the public body - the Council - to rebut that presumption.

Section 21(1)(b)

The Council has relied on section 21(1) as a basis for refusing access to the records covered by the second part of your request. In its detailed submission to this Office, dated 18 September 2003, the Council made it clear that it was actually relying on section 21(1)(b) rather than any of the other two exemption provisions contained at section 21(1) of the FOI Act.

Section 21(1)(b) of the FOI Act provides that:

"A head may refuse to grant a request under Section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to -
....
(b) have a significant, adverse effect on the performance by a public body of any of its functions relating to management (including industrial relations and management of its staff)..."

The argument put forward by the Council is that if the references are released, in a context in which the Council had undertaken to keep them confidential, it will be difficult to obtain open and honest references about prospective employees in the future. It contends that this will have a significant, adverse effect on the performance of its functions relating to management, "specifically, its ability to properly assess candidates for posts".

The standard to be met in applying the test of section 21(1)(b) is relatively high. An expectation of "significant, adverse effect" requires evidence to support the likelihood of serious harm occurring were the record or records to be released. The logic of the Council's position is that the proper functioning of its employee selection process depends upon its being able to continue with a practice whereby references are sought on the basis that they will remain confidential and that their content will not be made known to the particular job applicant.

I find it difficult to accept this logic particularly in a context, as in your case, where the job applicant in question is an existing employee of the public body. Employers have a range of mechanisms available to them in conducting a job selection process. As the Council has said in its submission, references are not always sought. Furthermore, even if the Council were to find itself unable to promise confidentiality, it would still be able to seek "open" references which the provider would expect to be released should the subject wish to view it.

More fundamentally, however, I believe it is not sustainable for a public body to seek to protect a particular approach to the performance of a particular function where that approach would appear to breach the requirement to abide by fair procedure. In so far as their actions impinge on the rights or interests of individuals, all public bodies are required to act on the basis of fair procedure. This requirement applies in the case of employee selection processes. A selection process which provides for the taking into account of references from third parties, or from supervisors or managers within the employing body, and where these references (or their content) are not to be made available to the applicant, is inherently unfair. Such a process precludes the applicant from knowing what is being said about him or her and renders the applicant incapable of rebutting comment or assessments which he or she would consider incorrect or biased.

I take the view that the functions intended to be protected by section 21(1)(b) are functions being exercised in a proper manner. I cannot see that it was ever the intention of the Oireachtas that this provision should be invoked to protect a function which, on the face of it, is being exercised contrary to the requirements of fair procedure and constitutional justice. In the light of my comments above, I take the view that section 21(1)(b) cannot be relied upon to protect the improper exercise of a function by a public body. Accordingly, I find that section 21(1)(b) does not apply in this case.

Even if I had considered that section 21(1)(b) did apply in this case, I would have had to consider the relevance of the public interest test provided for at section 21(2). This provides that the exemption contained at section 21(1)(b) does not apply in a case in which, "in the opinion of the head concerned, the public interest would on balance, be better served by granting than by refusing to grant the request ..." .

It is not necessary to set out a full consideration of the public interest arguments involved in this case. While acknowledging a significant public interest in facilitating public bodies in conducting employee selection processes, there is in my view an even stronger public interest in ensuring that public bodies conduct their affairs, in so far they impact on individuals, in a manner which accords with fair procedure and constitutional justice. In this context the Council has argued that, since you were ultimately successful in your job application, there is no public interest served by the release of the references. I do not accept that this is a valid argument in this particular case: (a) because at the time of your FOI request and at the time of your review application to this Office, you had not yet been appointed to the [name of position to which he had applied for promotion]; (b) because your eventual appointment was made, as I understand it, only following the intervention of an external agency and (c) most importantly, because you believe that the existence of these references is having a detrimental effect on your relationship with your employer on an on-going basis. I must make it clear that I have no view as to whether your belief, as set out at (c), is well-founded. The fact that you believe that the references are being used to your detriment is, in my view, a significant public interest consideration.

Accordingly, had it been necessary to consider the public interest arguments in this case, I am satisfied that this is a case in which, on balance, the public interest would be better served by the granting of the request than by the refusal of the request.

Section 26 - information given in confidence

In its submission to this Office of 18 September 2003, the Council argued that the references, in addition to being exempt on the basis of section 21(1)(b), were also exempt on the basis of section 26(1)(a) of the FOI Act.

Section 26(1)(a) of the Act provides that a public body must refuse a request if -

• the record contains information given to it in confidence and on the understanding that it would be treated by it as confidential, and
• in the opinion of the public body, disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
• it is of importance to the public body that such further similar information should continue to be given to the public body.

For the reasons adverted to above, I am unable in the course of this decision to identify those who provided the references in question. However, I believe I can and must say that the referees in question were then members of staff of a public body and that the references were given by them in the course of the performance of their functions as such staff members. The Council contends that the referees were approached for references on the basis of confidentiality; this is borne out by the heading "CONFIDENTIAL" which is prominent on the documentation sent by the Council to the referees. Furthermore, the Council has informed me that, when consulted in relation to your request, the referees stated that they had provided the references on the assumption that they would remain confidential to the Council. I understand from the Council that the referees do not wish that the references should be disclosed. In a submission to my Office, one of the referees explicitly objected to the reference being released. Accordingly, I accept it is probable that the Council gave the referees to believe that the references would be treated as having been obtained in confidence.

The references were provided in November/December 2000, at a time when the FOI Act had already applied to local authorities for more than two years. It seems reasonable to expect that the Council would have known that the FOI Act does not protect confidential communications between a member of staff of a public body (where that staff member is acting in the course of the performance of his or her functions) and a public body. This is the case irrespective of whether the staff member is employed by the particular public body (to which the communication is addressed) or by some other public body. In effect, the FOI Act does not accept that a member of staff of a public body can expect that communications entered into in the course of one's functions can be protected by confidence. This is the position consequent on the provision at section 26(2) of the FOI Act; it provides that the exemptions contained at section 26(1)(a) or (b) do not apply

"to a record which is prepared by a head or any other person (being a director, or member of the staff, of a public body ...) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence ...owed to a person other than a public body or head or a director, or the member of the staff of, a public body ...".

I am satisfied that the Council is not entitled to rely on the exemption at section 26(1)(a) because the restriction on that exemption, as set out in section 26(2), applies. Accordingly, I find that section 26(1)(a) is not applicable in relation to the references at issue in this case.

Comment

I acknowledge that the referees in question have been placed in an invidious position as a consequence of the Council's handling of the selection process. In effect, the Council gave the referees to believe that their references would be protected by confidentiality in a context in which the Council had no good basis for so doing. I understand from the Council that it has been its practice for some years to seek such employment references on the understanding of confidentiality. As noted above in relation to fair procedure, there must always have been a question mark over the propriety of a public body conducting a job selection process on the basis of such a procedure. However, since the advent of FOI, public bodies can have no expectation of being able to enter into confidentiality arrangements with a member of staff of a public body where the latter is acting in the performance of his or her functions.

In Case No. 020425, my predecessor commented on the matter of employment references being sought on the basis of confidentiality. The case involved the Civil Service and Local Appointments Commission (CS&LAC) which had sought a reference, in relation to a job applicant, from a referee who was not a member of staff of a public body. The CS&LAC had given assurances of confidentiality to the referee. My predecessor commented in that case:

" I believe it was inappropriate for the CS&LAC to give such a guarantee of confidentiality in the light of the general aim of the FOI Act to enable access 'to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies'. I note that the CS&LAC has since revised its wording on employer report forms to read:

'Please note that information provided by you may have to be released by us under the Freedom of Information Act, 1997'.

While Case No. 020425 is not on all fours with your case, particularly in that the referees in your case were all members of staff of public bodies and acting in that capacity, I believe the general comment made by my predecessor is valid. I believe all public bodies, seeking employment references, should make referees aware that their references are subject to release under the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, as amended by the Freedom of Information (Amendment) Act, 2003, I hereby vary the decision of the Council in the following terms: I affirm the decision of the Council in relation to the record sought in the first part of your request; in relation to the records (the references) sought in the second part of your request, I annul the Council's decision to refuse these records and direct that the records be released to you in the form of copies, as specified by you in your original request.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner